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STATE COURT CASES BANKING — LENDER’S ATTORNEY REVIEW FEES 06-2-6792 Turner, etc. v. First Union Bank, etc.; Iverson, et al. v. Collective Bank, etc.; Kelly, etc. v. Chase Manhattan Mtg. Corp., etc., App. Div. (Keefe, J.A.D.) (27 pp.) N.J.S.A. 46:10A- 6(d) permits lenders to pass along attorney fees associated with the review of “loan documents,” as that term is defined in the statute, regardless of whether the documents are submitted by or at the direction of the borrower’s attorney or the borrower. Federal regulations do not preempt state law concerning attorney fees. [Approved for publication Jul. 9, 1998.] CIVIL PROCEDURE — FICTITIOUS PARTY PRACTICE 07-2-6793 Royal v. Fabricius, App. Div. (per curiam) (3 pp.) Where the identity and address of the “John Doe” defendant were readily ascertainable in the police report of the accident, the plaintiff’s failure to file an amended pleading naming the correct defendant for over one and one-half years demonstrates an egregious lack of diligence, and summary judgment was properly granted to defendant. FAMILY LAW — ALIMONY 20-2-6794 Cook v. Cook, App. Div. (per curiam) (8 pp.) Although defendant is correct that plaintiff, as dependent former spouse, is entitled to be maintained only at the standard of living enjoyed during the marriage, the resources available after the divorce were insufficient to permit an award of alimony which would have made that possible, since the parties’ only major asset was a home which they could not sell, and the judge did not abuse his discretion in setting the alimony now that defendant’s income has increased, although the amount must be recalculated. Judge did err in eliminating the credit for former wife’s share of housing expenses, since this effectively rewarded her for delaying the sale of the home. NEGLIGENCE — CURBING — MUNICIPALITIES 31-2-6795 Norris, et ux. v. Borough of Leonia, App. Div. (per curiam) (11 pp. — including concurring opinion by King, P.J.A.D.) Trial court inappropriately applied Yanhko, Stewart and Mitchell to hold that municipality was not liable for a fall caused by the collapse of a curb, since a curb is a different structure than a sidewalk, and, moreover, Stewart indicates that the general wear and tear immunity for sidewalks controlled by a municipality no longer remains; matter must be remanded for a determination of whether the municipality is liable for a failure to protect against a dangerous condition of public property. NEGLIGENCE — SLIP AND FALL — PARKING LOTS 31-2-6796 Allred v. New Gold Equity Corp., et al., App. Div. (per curiam) (5 pp.) In this parking lot/sidewalk slip and fall case, summary judgment was properly granted to the municipality based on weather immunity and immunity for failing to enforce a law (illegal parking); however, summary judgment is reversed as to owner of multiple unit residential building in whose parking lot the fall occurred, since whether the cars were parked on a parking lot or over a sidewalk area must be further developed. PENSIONS — PUBLIC EMPLOYEES 56-2-6797 Deangelo v. Bd. of Trustees of P.E.R.S., App. Div. (per curiam) (8 pp.) PERS Trustees properly determined that petitioner — twenty-five year public employee and former Superintendent of Trenton Water Department since 1989 — lost credit for all of his pension rights accruing during his tenure in that latter position because of his conviction for official misconduct; the Trustees’ discretion in partial forfeiture cases is not limited to the post- misconduct period, and the Trustees did not abuse their discretion in forfeiting all of petitioner’s rights during his tenure as Water Superintendent, due to the gravity of the offense and the fact that the criminal activities did not represent an isolated event, but a continuing course of conduct by those he supervised. PUBLIC EMPLOYMENT — LABOR NEGOTIATIONS 33-1-6798 City of Jersey City v. Jersey City Police Officers Benevolent Assn., et al., Supreme Ct. (Stein, J.) (39 pp.) City did not have to negotiate with police unions before implementing a plan to transfer police officers from administrative and non-police positions to operational positions and to fill the administrative and non-police positions with civilian personnel; the City’s actions constitute a non-negotiable managerial prerogative under the Local 195 negotiability test, and even under the unit work rule applied by PERC, the City was not required to negotiate the shifting of unit work because the City’s actions were neither exclusively nor primarily economically motivated. FEDERAL COURT CASES CIVIL PROCEDURE ARBITRATION STAY 07-7-6799 Highlands Insurance Group v. Perini/Nugent Joint Venture et al., Dist. Ct. (Brotman, D.J.) (17 pp.) Magistrate judge’s order denying a stay of ongoing arbitration is affirmed, despite insurer’s filing of a declaratory judgment action concerning coverage of one of the arbitrating parties, since it was not contrary to law or clearly erroneous for the magistrate judge to have concluded that a stay would be more prejudicial or harmful to the arbitrating parties than what insurer would suffer if it were not granted, and judicial intervention would hinder the policy goal of prompt, nonjudicial dispute resolution. [Filed July 8, 1998.] [For publication.] ENVIRONMENTAL LAW ENDANGERED SPECIES 17-7-6800 The Hawksbill Sea Turtle v. Federal Emergency Management Agency, Dist. Ct. (Brotman, D.J.) (52 pp.) Motion for injunctive relief against a temporary housing project that would allegedly cause harm to the Virgin Islands Tree Boa and to sea turtles is denied because court cannot conclude that defendants’ actions have amounted to a “taking” under section 9 of the Endangered Species Act, 16 U.S.C. 1531-1544, which requires a showing of significant habitat modification that causes actual, as opposed to hypothetical or speculative, death or injury to identifiable protected animals. Plaintiffs have failed to provide evidence of one dead or injured sea turtle or studies documenting the general decline in the population since the onset of the project, and thus have failed to demonstrate a reasonably certain threat of imminent harm. [Filed July 8, 1998.] [For publication.] JURISDICTION QUI TAM RICO 24-7-6801 U.S. ex rel. Haskins et al. v. Omega Institute, Inc. et al., Dist. Ct. (Brotman, D.J.) (30 pp.) In qui tam action on behalf of former and current paralegal students, charging that school operated by making false statements about its paralegal training in documents filed with federal and state agencies, court dismisses defendants’ motion for summary judgment as to federal RICO claims since the doctrine of primary jurisdiction which applies where a claim originally cognizable in court requires resolution of issues that have been placed within the special competence of an administrative body is inapposite since the government declined to intervene, and its decision cannot be allowed to compromise the plaintiffs’ claim. [Filed July 8, 1998.] [For publication.] JURISDICTION REMOVAL 24-7-6802 Raggio, et al. v. Omega Institute, et al., Dist. Ct. (Brotman, D.J.) (9 pp.) Where plaintiffs’ claims in New Jersey Superior Court are purely creatures of state common and statutory law and confer no original subject matter jurisdiction on this Court, and there being no compelling reasons to consolidate that case with United States, ex rel. Haskins, et al v. Omega Institute, et al. [see above] or assume jurisdiction by virtue of the All Writs Act, court denies defendants’ petition for removal and remand all of the counts of this action to the state court. [Filed July 8, 1998.] [For publication.] JURISDICTION/VENUE — TRANSFER — EMPLOYMENT 24-7-6803 Tischio v. Bontex, Inc., et al., U.S. Dist. Ct. (Lechner, U.S.D.J.) (47 pp.) Plaintiff’s action for breach of an alleged lifetime employment contract against Virginia corporation and individual Virginia-resident defendants is not properly venued in NJ since all of the defendants do not reside in this district, and most of the events and omissions giving rise to the claim occurred in Virginia; even if venue were proper — based on plaintiff’s claim that the promise was made in NJ by a former NJ corporation to her as a NJ resident — the court would, in any event, opt to transfer this matter to Virginia as the forum with the most substantial interest in the litigation. [Filed Jun. 29, 1998.] ADMINISTRATIVE LAW DECISIONS EDUCATION — TENURE CHARGES 01-EDU-6804 I/M/O Tenure Hearing of DeMaio, etc., OAL (McGill, A.L.J.) (11 pp.) Tenured custodian is found guilty of conduct unbecoming on six occasions, evidencing a pattern of behavior including the use of highly abusive, offensive and inappropriate language directed at his supervisor, and threatening the supervisor with physical harm, and, even though his conduct may stem from problems in his personal life which were exacerbated by a shift change, the custodian’s lack of self control is unacceptable and his dismissal is warranted. [Initial decision dated Apr. 16, 1998.] PENSIONS 01-TYP-6805 Renne, et al. v. P.F.R.S., OAL (McGill, A.L.J.) (15 pp.) Additional compensation received pursuant to municipal ordinance by chief of police, deputy chief of police and police captain was not generated by extra duty but was granted primarily in anticipation of retirement, and therefore the salary adjustments do not constitute creditable compensation for pension purposes. [Initial decision dated Mar. 24, 1998.] PUBLIC EMPLOYEES — DISCIPLINE 01-CSV-6806 Rambo v. Rowan College of N.J., OAL (Lavery, A.L.J.) (11 pp.) University security officer should not have been held to have abandoned his position through a resignation not in good standing, and is ordered reinstated, since the action of the respondent in pursuing appeals of prior decisions concerning the officer lulled him into a false sense of security that he was to remain away from the job until the appeals were decided. [Initial decision dated May 11, 1998.] 01-CSV-6807 Snowden v. Preakness Hospital, etc., OAL (Klinger, A.L.J.) (9 pp.) Certified nursing attendant at geriatric hospital is found guilty of insubordination, abandonment of her post, and neglect of duty, since she left her post without telling her supervisor, left the building in direct disobedience of her supervisor’s order and failed to bring a doctor’s note to justify her departure, and left three of her vulnerable patients unattended. In light of past disciplinary history, the ALJ finds that the recommended ten-day suspension is inadequate, but will not increase it sua sponte. [Initial decision dated Apr. 29, 1998.] 01-CSV-6808 Johnson v. East Jersey State Prison, OAL (Sullivan, A.L.J.) (8 pp.) Senior corrections officer was properly removed for conduct unbecoming a public employee when he intentionally falsified employment documentation by listing his “common law” wife and her children as his wife and children. [Initial decision dated May 13, 1998.]

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